210us373

8/17/2019 210US373

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LONDONER

v. DENVER.

210 U. S.

Counsel for

Parties.

LONDONER

v CITY AND COUNTY

OF

DENVER.

ERROR TO

THE SUPREME

COURT OF

THE STATE

OF COLORADO.

No.

157

Argued March

6 9

1908.-Decided June 1 1908.

The legislature -of

a

State

may

authorize municipal improvements

without

any

petition of landowners to be

assessed therefor and

proceedings

of a

municipality

in

accordance

with

charter

provisions and without hearings

authorizing an

improvement

do

not deny due process of

law

to

land-

owners

who

are afforded a

hearing upon

the assessment itself.

The

decision of

a state court that a

city council

properly

determined that

the

board of public works had acted

within

its

jurisdiction

under

the city

charter

does not

involve

a Federal

question reviewable by this

court.

Where

the state court

has construed

a

state statute so as to

bring

it

into

harmony

with the Federal and state

constitutions nothing in the

Four-

teenth

Amendment gives this court

power to review the decision

on the

ground that the state court

exercised legislative power

in construing

the

statute

in that

manner and thereby

violated

that

Amendment.

There

are

few

constitutional

restrictions on the

power

of the States to assess

apportion and

collect taxes and

in the enforcement

of such restrictions

this court has regard

to substance and not form

but where the legislature

commits

the

determination

of the

tax

to

a

subordinate body

due

process

of

law

requires

that

the taxpayer

be

afforded

a hearing of which he must

have

notice

and

this requirement is not satisfied

by the

mere

right to file

objections; and

where as

in

Colorado the taxpayer

has

no

right to

object

to an assessment

in

court

due process of

law

as

guaranteed by the Four-

teenth

Amendment requires

that he have the opportunity

to support his

objections by argument

and proof at some time

and place.

The denial

of

due process

of law

by

municipal

authorities

while

acting

as

a

board

of equalization

amounts to a denial by the

State.

Colorado 104

reversed.

TH facts

are

stated

in

the opinion.

Mr Joshua

Freeman

Grozierfor plaintiffs in error.

Mr F. W

Sanborn

and Mr Halsted L

Ritter with whom Mr

Henry

A

Lindsley

was

on

the

brief for

defendants

in

error.

Citation: 210 U.S. 373

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8/17/2019 210US373


OCTOBER TERM, 1907.

Opinion of the Court

210

U S

MR.

JUSTI E MOODY delivered

the opinion of the court.

The plaintiffs in error began

this

proceeding in

a

state

court

of Colorado to relieve

lands owned by them from

an assessment

of a tax

for the cost of paving a street

upon

which the lands

abutted.

The

relief sought was granted by

the

trial

court,

but its

action was

reversed by

the

Supreme

Court of the

State,

which

ordered

judgment for

the

defendants.

33 Colorado,

104.

The case is

here on

writ of error.

The

Supreme

Court

held

that

the tax was

assessed

in

conformity with

the constitution and

laws

of

the

State,

and

its

decision on

that

question

is

conclusive.

The

assignments

of error relied

upon

are as

follows:

First.

The Supreme Court

of Colorado erred

in

holding

and

deciding that the portion of proviso

'eighth' of section

of article

7

of 'An Act

to Revise and Amend the

Charter

of

the

City

of

Denver,

Colorado, signed and

approved by the

Governor

of

Colorado, April

3,

1893'

(commonly called the

Denver

City

Charter of 1893), which

provided, 'And

the

finding

of

the

city

council

by ordinance

that

any improvements

pro-

vided

for

in

this

article

were duly ordered after

notice duly

given,

or that a petition or remonstrance

was or was not

filed

as above pro-vided, or was or was

not

subscribed by

the

required

number of owners aforesaid,

shall be conclusive in every court

or

other tribunal,'

as

construed by

the

Supreme Court

of

Colo-

rado, wasvalid

and conclusive as against

these

appellees.

The

validity

of so

much of said section

as

is above quoted was

drawn

in

question

and

denied by

appellees in

said cause,

on

the

ground

.of

its

being

repugnant

to the

due process

of

law clause

of

the

Fourteenth Amendment

of

the

Constitution

of

the

United

States

and in

contravention thereof.

Second.

The Supreme

Court

of Colorado

further erred in

assuming

that

said city council

ever made a

finding

by ordi-

nance in accordance

with

said

proviso

'eighth.'

Fifth.

The Supreme Court

of Colorado more particularly

erred

in holding

and

deciding

that

the

city

authorities,

in

fol-

8/17/2019 210US373


LONDONER

v.

DENVER.

210 U S.

Opinion

of the Court

lowing the

procedure

in

this

Eighth Avenue

Paving District,

No. 1, of

the

city of

Denver, Colorado,

in

the manner

in which'

the

record, evidence

and

decree

of

the trial court

affirmatively

shows

that they did, constituted

due process

of law as to these,

several

appellees

(now plaintiffs in error) as guaranteed

by

the

Fourteenth Amendment

of the Constitution

of the United States.

Ninth. The

Supreme

Court of Colorado

erred in upholding

sections

29,

30,

and 31, and

each thereof of article

7 of 'An

Act

to Revise and

Amend the Charter

of the City of Denver,

Colo-'

rado, signed and

approved

by

the

Governor of

Colorado

April 3rd,

1893

(commonly called

the

Denver

City

Charter

of

1893), and not

holding

it special

legislation

and a

denial

of the

equal protection

of the laws and taking

of

liberty and

property

of

these

several

plaintiffs in

error

without

due

process of law,

in violation

of

both the

state

and Federal

Constitution

and the

Fourteenth

Amendment thereof.

Tenth. The Supreme Court of Colorado

erred in

upholding

each of

the

several

assessments

against

the

corner lots, and

par-

ticularly

those

lots

belonging

to

said

Wolfe

Londoner

and,

Dennis

Sheedy, because each

thereof was

assessed

for

the paving,:

and

other improvements in

this district alone

for more

than

the several lots so assessed were

ever actually

worth and far

in

excess of any special

benefits received

from

the

alleged improve-:

ments.

These assignments will

be passed upon in

the order in

which

they seem to

arise in

the consideration

of the whole ease.

The tax

complained of was

assessed under the provisions of

the

charter of

the

city of Denver,

which

confers upon

the

city

the power to make

local improvements

and -to assess

the

cost

upon

property specially

benefited. It does

not

seem necessary

to set

forth fully the elaborate

provisions of

the -charter r'egu-

lating the exercise'of this

power, except where

th yl o

special examination.

The board of public

works,. up'on'the'

petition

of

a

majority ors

f the

afrontage to

be s

sessed,

may order

the paving of a

.street.

The

boiard must,

however, first

adopt

specifications

mark

out

a

district

of

ass.ess_-

8/17/2019 210US373


OCTOBER

TERM 1907

Opinion of

the Court 210 U S

ment,

cause a map to

be made

and an estimate

of

the

cost, with

the approximate

amount to be assessed upon. each lot of

land.

Before

action

notice

by

publication

and

an

opportunity

to

be

heard to any person interested

must be given by the board.

The

board

may then order

the

improvement, but

must recom-

mend

to the

city council a form of ordinance authorizing

it

and

establishing an

assessment

district

which is not amend-

able by the

council. The

council may then,

in

its discretion,

pass or refuse to pass

the

ordinance.

If the

ordinance is

passed,

the contract for the work is made

by the mayor. The charter

provides

that

the

finding

of

the

city

council,

by

ordinance,

that any

improvements

provided

for in this article

were duly

ordered after notice duly

given,

or that

a

petition or

remon-

strance

was

or

was

not filed

as above

provided,

or was or was

not

subscribed

by

the

required number

of

owners aforesaid

shall be conclusive

in

every

court

or other tribunal.

The

charter then provides for

the assessment of the cost in

the

following

sections:

SEC.

29. Upon completion of any local

improvement, or, in

the case of sewers,

upon

completion from

time

to time of any

part

or

parts

thereof,

affording complete

drainage for any

part

or parts

of the

district

and acceptance

thereof

by

the

board

of

public

works, Qr

whenever

the

total

cost of any such

improve-

ment, or of any such

part

or

parts

of any sewer, can be defi-

nitely ascertained, the

board of public works shall prepare a

statement

therein

showing

the

whole

cost of the

improvement,

or such

parts

thereof, including

six per

cent additional

for costs

of

collection

and other

incidentals,

and

interest to the

next

succeeding

date

upon which general taxes, or the first

install-

ment

thereof,

are

by

the

laws

of this State made

payable;

and

apportioning

the same

upon

each lot or

tract of

land

to be as-

sessed for the same,

as

hereinabove

provided; and

shall

cause

the same to be certified

by the president and

filed in

the

office

of the city clerk.

SEC. 30. The

city

clerk shall thereupon

by advertisement

for

ten

days

in some

newspaper

of

general circulation, published

8/17/2019 210US373


LONDONER

v

DENVER.

210 U S

Opinion

of the Court

in the

city

of

Denver,

notify the owners of the

real

estate to be

assessed that

said improvements

have been,

or

are

about to

be,

completed

and

accepted,

therein

specifying

the whole cost

of

the

improvements

and the share so apportioned to each lot

or

tract of land; and that any complaints or

objections

that

may

be made in writing,

by

the owners, to the city council and filed

with the

city

clerk

within

thirty

days

from the

first

publication

of such notice, will be heard and determined

by

the city coun-

cil before the passage of any

ordinance

assessing the cost of said

improvements.

SEC.

31.

After

the

period

specified

in

said notice

the

city

council, sitting as a board of equalization, shall hear and

deter-

mine all such complaints and objections, and may recommend

to the board

of

public works

any modification of

the

appor-

tionments made by said board;

the

board may

thereupon

make

such modifications

and

changes as to

them

may seem

equitable

and

just

or

may confirm

the

first apportionment and

shall

notify the

city

council

of

their

final

decision;

and

the

city

coun-

cil

shall

thereupon

by

ordinance

assess

the

cost

'of

said improve-

ments

against all the real estate

in said

district

respectively

in

the proportions

above mentioned.

It appears from the charter that in the

execution

of the

power to make local

improvements

and

assess

the

cost upon

the property specially benefited, the

main

steps to be taken

by the city authorities are plainly marked and

separated:

1. The board of public works must transmit to

the

city

coun-

cil

a

resolution

ordering

the

work

to

be

done

and

the

form

of

an ordinance authorizing it and creating an assessment dis-

trict.

This

it can

do

only

upon certain

conditions,

one of which

is

that there

shall first be filed a petition

asking the

improve-

ment,

signed

by

the owners of

the

majority

of

the

frontage

to

be assessed. 2. The passage of that ordinance by the city

council,

which

is given

authority

to

determine

conclusively

whether

the

a'ction of

the

board

was duly taken.

3. The

assessment of

the

cost upon the landowners after due notice

and opportunity for hearing.

8/17/2019 210US373


OCTOBER

TERM

1907.

Opinion

of theCout

210

U. S.

In the case before us the

board

took the first step by

trans-

mitting to the

council

the

resolution

to do the

work

and the

form

of

an

ordinance

authorizing it. it is contended,

however,

that there

was wanting an essential

condition

of

the jurisdic-

tion

of the board, namely, such a petition from the

owners

as

the law requires. The

trial

court found this contention

to

be

true.

But,

as

has

been

seen, the

charter

gave the city

council

the

authority to determine conclusively

that

the

improvements

were duly ordered by the board

after

due notice and a proper

petition In the exercise of this

authority

the city council, in

the

ordinance directing

the

improvement

to

be

made, ad-

judged,

in effect, that

a proper

petition had been

filed.

That

ordinance after

reciting

a

compliance

by the board

with

the

charter in other

respects,

and that

certain

petitions for

said

improvements

were

first presented to

the

said

board,

sub-

scribed

by the owners of

a

majority

of

the

frontage

to

be

assessed for said

improvements

as by the city charter

re-

quired, enacted That upon consideration

of the

premises

the

city

council

doth

find

that

in

their

action and.

proceedings

in relation to said Eighth

Avenue

Paving District

Number

One

the

said

board of

public works

has

fully

complied

with

the requirements of the

city charter relating

thereto. The

state Supreme

Court held

that the determination

of

the city

council was

conclusive that

a

proper

petition

was

filed, and

that decision

must

be

accepted

by

us as

the law of the

State.

The

only

question

for

this court is whether

the

charter pro-

vision

authorizing:

such a

finding,

without

notice

to

the

land-

owners, denies

to them due

process of law.

We

think

it

does

not. Theproceedings, from the beginning

up

to and including

the

passage

of the ordinance 'authorizing the

work did

not in-

clude any

assessment or necessitate

any

assessment, although

they laid the

foundation for an

assessment,

which

might

or

might

not

subsequently be

made. Clearly all

this

might

validly be

done

without hearing 'to the

landowners,

provided

a hearing upon the assessment itself

is afforded.

Voigt v

De-

troit

184

U:

S

15;

Goodrich

v

Detroit

184 U.

S. 432. The

8/17/2019 210US373


LONDONER

v.

DENVER.

210

U S

Opinion

of

the Court

legislature might have

authorized

the making of

improvements

by the city

council without any petition. If it chose to exact

a petition

as

a security

for

wise

and

just

action

it could, so far

as

the

Federal

Constitution

is concerned, accompany that

condition

with a provision

that

the council,

with or without

notice, should

determine finally

whether it

had

been performed.

This

disposes of

the

first assignment of error, which is over-

ruled.

The second

assignment is

that

the

court

erred

in de-

ciding that

the city council

had determined that

the board

of

public works

had complied with

the conditions

of its

juris-

diction

to

order

the

work done.

It

is

enough

to

say

that

this

is not a

Federal

question.

We

see nothing in the

sixth

assignment of error. It

is ap-

parently based upon the proposition that

in construing

a law

of

the

State

in

a manner

which

the

plaintiffs

in

error

think was

clearly erroneous, the

Supreme

Court of

the

State exercised

legislative

power, and thereby violated the Fourteenth Amend-

ment.

We are puzzled to find any other answer to this proposi-

tion

than to

say

that

it

is

founded

upon

a

misconception

of

the

opinion of the

court

and of

the

effect of the

Fourteenth

Amend-'

ment. The complaint in this assignment is not that the court

gave a construction to the law which brought it

into conflict

with the Federal

Constitution, but

that

in construing

the

law so as

to.

bring it into

harmony with

the Federal

and

state

constitutions

the

court so

far neglected its

obvious

meaning

as

to

make

the

judgment an

exercise

of legislative power.

We

know

of

nothing

in

the Fourteenth Amendmentwhich

gives

us authority

to consider a question

of this

kind.

We think

it

fitting,

however,

to

say

that we

see nothing extraordinary

in

the

method

of interpretation followed

by the

court or in

its results. .Whether we should or

not have

arrived at the

same

conclusions

is

not of consequence.

The ninth assignment questions

the constitutionality of

that

part of the

law

which

authorizes

the

assessment

of

benefits.

It seems desirable,

for

the proper disposition of this

and

the

next

assignment,

to state the

construction

which

the

Supreme

8/17/2019 210US373


OCTOBER

TERM 1907

Opinion of th

Court.

210 U S

Court

gave to the charter.

This may be found

in

the judg-

ment under

review and two

cases

decided with

it. Denver

v.

Kennedy

33 Colorado,

80; Denver v.

Dumars 33 Colorado,

94.

From these cases it

appears that the

lien

upon

the

adjoining

land

arises

out

of the assessment;

after the

cost of

the work

and

the provisional apportionment

is

certified

to the city

council

the

landowners

affected

are afforded

an

opportunity

to

be

heard upon

the

validity

and

amount

of the

assessment by

the

council

sitting as

a board of equalization;

if

any further

notice

than

the

notice to file complaints

and

objections is

re-

quired,

the

city

authorities

have

the

implied power

to

give

it;

the hearing

must

be

before

the

assessment is made;

this

hearing, provided

for by 1, is one

where

the

board of

equali-

zation shall hear the

parties complaining and such

testimony

as

they may offer

in

support

of their complaints

and objections

as would

be competent and

relevant,

33

Colorado,

97; and

that

the full

hearing before

the

board of equalization excludes

the courts from

entertaining any

objections which

are

cog-

nizable by

this

board. The

statute

itself therefore

is

clear

of

all

constitutional

faults.

It remains

to

see how

it

was ad-

ministered

in the

case at bar.

The

fifth

assignment, though

general, vague

and

obscure,

fairly raises, we think the

question whether

the

assessment

was

made

without notice nd

opportunity

for

hearing

to those

affected

by

it

thereby denying to

them due process of

law.

The trial court found

as a

fact

that no

opportunity for hear-

ing was

afforded,

and

the

Supreme

Court

did

not

disturb this

finding. The record

discloses what

was actually

done, and

there seems

to

be no dispute

about

it. After the improvement

was completed

the

board

of

public works, in compliance

with

9 of the

charter certified to

the

city

clerk

a

statement

of

the cost, and an

apportionment of

it to the lots of land

to be

assessed. Thereupon

the city clerk, in

compliance

with

30,

published

a

notice

stating

interalia hat the

written

complaints

or

objections

of the

owners, if filed

within thirty

days,

would

be

heard and determined

by the city

council before

the pas-

8/17/2019 210US373


LONDONER

v

DENVER.

210

U

Opinion of the

Court.

sage

of any

ordinance

assessing

the

cost.

Those

interested,

therefore,

were

informed

that

if

they

reduced their

complaints

and

objections

to

writing,

and

filed

them within

thirty

daysi

those

complaints

and

objections

would be

heard, and would

be

heard

before

any

assessment

was

made.

The notice

given

in

this

case,

although

following

the words

of the

statute,

did no t

fix the

time

for

hearing, and

apparently

there

were

no

stated

sittings

of

the

council

acting as

a

board

of equalization.

But

the

notice purported

only to fix

the time

for

filing the

com-

plaints

and

objections,

and

to

inform

those who

should

file theni

that

they

would be

heard

before

action. The

statute

expressly

required

no

other

notice,

but

it was

sustained

in

the court

below

on the

authority

of

Paulsen

v.

Portland

149

U. S.

30 because

there was an

implied

power

in

the

city council

to give

notice of

the

time

for

hearing.

We

think that

the

court rightly

conceived

the meaning

of, that

case

and

that

the statute

could

be

sus-

tained

only

upon

the

theory

drawn

from

it.

Resting

upon

the

assurance

that'they

would

be heard,

the

plaintiffs

in

error filed

within the

thirty days

the

following

paper:

Denver,

Colorado,

January

13

1900.

To the

Honorable

Board

of Public

Works

and the

Honorable

Mayor and

City

Council

of the

City

of

Denver:

The

undersigned,

by

Joshua

Grozier, their

attorney,

do

hereby-most

earnestly

and

strenuously

protest

and

object

to

the

passage

of

the

contemplated

or any assessing

ordinance

against

the property

in

Eighth Avenue

Paving

District

No.

1

so

called, for each

of

the

following

reasons,

to

wit:

1st.

That

said

assessment

and

all

and each

of

the

pro-

ceedings

leading

up to

the same

were

and

are illegal

voidable

and void,

and

the

attempted

assessment

if

made

will be

void

and

uncollectible.

2nd.

That

said

assessment

and

the

cost

of said

pretended

improvement

should

be

collected,

if

at

all,

as

a

general

tax against

the

city at large

and not

as

a

special

assess-

ment.

8/17/2019 210US373


OCTOBER

TERM, 1907.

Opinion

of the Court. 21 U.

3d. That property

in

said city

not

assessed

is

benefited

by

the

said pretended

improvement

and

certain

property assessed

s

ot

benefited

by

said

pretended

improvement

and

other

property

assessed

is

not

benefited

by

said

pretended

improve-

ment

to

the

extent

of

the assessment;

that the

individual

pieces

of

property in

said district are

not benefited to

the 6x-

tent

assessed against

them and each

of

them

respectively;

that

the

assessment

is abitrary and

property assessed,

in an equal

amount is

not benefited equally;

that the boundaries

of said

pretended

district were

arbitrarily

created

without regard

to

the

benefits or

any other

method

of

assessment

known

to

law;

that said

assessment is

outrageously large.

4th.

That

each

of

the laws and

each section thereof un-

der

which

the proceedings

in said

pretended

district were

at-

tempted

to

be had do

not

confer

the

authority for such

pro-

ceedings; that the

1893

city

charter

was

not properly

passed

and

is

not

a

law

of the State

of

Colorado

by reason

of

not

properly

or at all passing

the

legislature;

that

each

of

the

pro-

visions

of said

charter

under

which said proceedings

were

attempted

are

unconstitutional

and violative

of

fundamental

principles

of law,

the

onstitution

of the

United States and

the

state

constitution, or some

one or more of the

provisions

of

one or more of

the same.

5th.

Because the

pretended

notice

of assessment is

in-

valid

and was not

published

in

accordance

with the

law,

and

is

'in

fact no notice

at all;

because there

was and is no valid

ordinance creating

said

district;

because each

notice

required

by

the

1893

city

charter

to

be given, where it

was attempted

to give such notice,

was

insufficient, and

was not

properly

given or roperly published.

6th.

Because

of. non-compliance

by

the contractor with

his contract and failure

to

complete

the work

in accordance

with

the contract;

because the contract

for said work

was

let

without right,

or authority;

because said pretended

district

is

incomplete

and the work under

said contract

has not been

completed in accordance with said

contract,

because items

too

8/17/2019 210US373


LONDONER

v. DENVER

21 U S Opinion o the

Court

numerous to

mention, which were not a

proper

charge in the

said assessment, are

included therein.

7th.

Because

the

work was done

under pretended

grants

of

authority oontained in

pretended laws, which

laws were

violative

of

the constitution and fundamental laws of the

State

and Union.

8th.

Because the

city had no jurisdiction

in

the

premises.

No petition subscribed

by the owners of

a

majority of

the

frontage

in the district to

be assessed

for said

improvements

was ever

obtained or presented.

9th.

Because

of

delay

by the

board

of

public works

in

at-

tempting

to let the contract and

because the

said pretended

improvement was never properly

nor sufficiently petitioned for;

because the

contracts were not let nor

the

work done

in ac-

cordance

with

the petitions if any,

for

the work, and because

the

city had no jurisdiction

in

the

premises.

10th. Because before

ordering the pretended

improvement

full

details and

specifications for

the same,

permitting and

en-

couraging competition and determining

the

number of install-

ments and time within which the

costs

shall

be payable, the

rate of interest on unpaid installments, and

the

district

of lands

to be assessed,

together

with a map showing

the

approximate

amounts

to be

assessed, were

not adopted

by

the board of public

works before

the

letting of

the

contract

for

the

work and fur-

nishing of material; because advertisement

for 20 days in tw o

daily

newspapers

of general circulation, giving notice

to the

owners of real

estate.in

the district of the

kind

of

improve-

ments

proposed,

the

number

of

installments and time

in which

payable, rate

of interest and extent

of

the

district,

probable

cost and time when

a resolution ordering

the

improvement

would

be considered, was not

made

either properly or

at all,

and

if

ever

attempted

to be

made was

not made

according to

law,

or as required

by

the

law

or charter.

11th.

Because the attempted advertisement for

bids on

the contract

attempted

to be let

were not properly published

and

were

published

and

let,

and

the

proceedings

had,

if

at

all,

8/17/2019 210US373


OCTOBER TERM

19 7

Opinion

of the Court.

21

U

S

in

such a way as to

be prejudicial to

the

competition

of bidders

and

to deter bidders; and the completion of

the contracts after

being

attempted

to

be

let

was

permitted

to

lag

in

such a man-

ner

as not

to comply with the contract charter

or laws, and

the power

to

let

the contract attempted

to

be let was

not

within

the

power of

the

parties

attempting to let

the

same;

because

the city

council

is or was

by

some of the proceedings deprived

of

legislative

discretion, and the board of

public

works

and

other

pretended

bodies given

such discretion,

which discretion

they

delegated

to

others having

no right

or

power

to exercise

the

same;

and

executive

functions

were

conferred

on

bodies

having no

right

power or authority

to exercise

the

same and

taken away from others

to

whom such power

was

attempted

to

be

granted

or given or

who

should properly

exercise the

same;

that judicial power was attempted

to be conferred

on

the board of public works, so called,

and the city council, and

other

bodies or

pretended

bodies not judicial

or

quasi-judicial

in

character having

no

right power or

authority

to

exercise

the

same,

and the

courts

attempted to be deprived thereof.

Wherefore,

because of the

foregoing

and

numerous other

good and sufficient

reasons,

the

undersigned object

and protest

against the

passage

of the

said proposed

assessing

ordinance.

This certainly

was

a complaint

against and objection

to the

proposed

assessment. Instead of

affording

the plaintiffs

in

error

an opportunity to be

heard upon

its allegations, the

city

council,

without

notice

to them, met

as a

board

of

equalization,

not in

a

stated

but in

a specially called

session,

and, without any hear-

ing,

adopted

the

following

resolution:

Whereas,

complaints have

been

filed

by the

various persons

and firms as the owners

of

real

estate

included

within the Eighth

Avenue

Paving District

No.

1 of the city of Denver

against the

proposed assessments on said

property for the cost of said

pav-

ing, the

names and description of

the real

estate respectively

owned

by

such

persons

being

more

particularly

described

in

the various

complaints filed with the

city

clerk;

and

Whereas, no

complaint

or objection has

been

filed

or

made

8/17/2019 210US373


LONDONER v DENVER

210 U S

Opinion

of the Court

against the

apportionment of said assessment made by the

board of public works of

the

city of Denver, but the complaints

and

objections filed

deny

wholly the

right of the

city

to assess

any

district

or

portion

of

the

assessable property of

the city of

Denver; therefore, be it

Resolved, by

the

city council of

the

city of Denver,

sitting

as a

board

of equalization, that

the

apportionments of said

assessment

made by said board of public

works.

be,

and

the

same are hereby, confirmed

and

approved.

Subsequently,

without further notice

or

hearing,

the city

council

enacted

the

ordinance

of

assessment

whose

validity

is

to

be

determined

in this case. The facts

out

of

which

the

question on this assignment arises

may

be compressed into

small

compass. The first

step in the assessment

proceedings

was by

the certificate of the board of public

works

of

the

cost

of

the

improvement and a

preliminary

apportionment of it.

The last step

was the

enactment of the assessment ordinance.

From beginning

to end

of

the proceedings

the landowners,

although

allowed

to

formulate and

file

complaints

and

objec-

tions, were not afforded an opportunity to

be

heard

upon them.

Upon

these

facts was there a denial by

the State

of the due

process of law

guaranteed

by

the Fourteenth

Amendment to

the Constitution of the United States?

In

the assessment,

apportionment

and

collection of taxes

upon property

within

their jurisdiction the Constitution of

the

United States imposes

few restrictions upon

the States. In

the

enforcement

of

such

restrictions

as

the

Constitution

does

impose

this court has regarded substance

and

not form. But

where the

legislature of a

State,

instead of fixing the tax itself,

commits to some subordinate body the duty of determining

whether,

in what amount and upon whom

it

shall

be

levied,

and of making

its

assessment and apportionment due process

of law

requires

that at some stage of the proceedings before

the tax becomes

irrevocably

fixed, the taxpayer shall have

an opportunity to be

heard,

of which

he must have notice, either

personal, by

publication, or

by a

law

fixing

the time

and

place

VOL ccx-25

8/17/2019 210US373


OCTOBER

TERM 1907.

Opinion of

the

Court. 210 U.

S.

of the

hearing. Hager

v.

Reclamation

District

111

U. S 01;

Kentucky

Railroad

Tax Cases,

115

U.

S.

321;

Winona

St.

Peter

LandCo.

v. Minnesota

159

U. S 26

537; Lent

v. Tillson

140

U. S.

316; Glidden v.

Harrington

189

U.

S 55;

Hibben

v.

Smith

191

U.

S.

310; Security

Trust

Co. v.

Lexington,

203 U.

S.

323;

Central

of Georgia v.

Wright,

207

U.

S.

127.

It

must

be

remembered

that

the law

of Colorado

denies

the landowner

the

right

to object

in

the courts

to

the

assessment

upon

the

ground

that

the objections

are

cognizable only

by the

board

of

equalization.

If it

is

enough

that

under such

circumstances

an

opportunity

is

given

to submit

in writing

all

objections

to and

complaints

of the tax

to

the

board

then there

was a hearing

afforded

in

the

case

at

bar. But we

think that something

more

than

that

even

in

proceedings

for

taxation

is required

by

ue process

of

law.

Many

requirements

essential

in strictly

judicial

proceed-

ings

may

be

dispensed

with in

proceedings

of this

nature. But

even here hearing

in its

very

essence demands

that he

who

is

entitled to

it

shall

have

the right

to support

his allegations

by

argument

however

brief

and if

need be

by

proof

however

informal.

Pittsburg

c. Railway

Co.

v.

Backus,

154

U. S.

421

426; Fallbrook

Irrigation

District

v.

Bradley,

164 U. S.

112 171

et

seq.

It

is

apparent

that

such

a hearing

was denied

to the

plaintiffs

in

error.

The

denial

was

by

the

city

council

which

while acting

as board

of equalization

represents

the

State.

Raymond

v.

Chicago Traction

Co.,

207

U.

S.

20.

The

assessment

was

therefore

void

and

the

plaintiffs

in

error

were

entitled

to a

decree

discharging

their

lands

from a

lien

on account of

it.

It

is

not

now

necessary

to consider

the

tenth

assignment

of

error.

Judgment

reversed.

THE CHIEF

JUSTICE

and MR.

JUSTIcE HOLMES

dissent.

8/17/2019 210US373


PIERCE

v.

CREECY.

210 U S Statement of the Case.

PIERCE v

CREECY,

CHIEF

OF POLICE

OF

THE

CITY

OF ST.

LOUIS.

APPEAL

FROM

THE

CIRCUIT

COURT

OF

THE UNITED

STATES

FOR

THE

EASTERN

DISTRICT

OF

MISSOURI

No.

357 Argued

April

20,

21 1908.-Decided

June 1

1908

Whether

or

not

the indictment

on which

the demand

for

petitioner s

sur-

render for

interstate

extradition

is based

charges

him

with

crime within

the

requirements

of

Article IV,

§ 2, par. 2,

of the

Federal

Constitution,

involves

the

construction of

that instrument,

and

a direct

appeal lies

to

this

court

from the

Circuit Court under §

5 of

the

Judiciary Act

of 1891

While

no

person may be lawfully

extradited

from

one

State

to another

un-

der

Article

IV,

§ 2,

par.

2

of the

Federal Constitution

unless he

has been

charged with

crime

in

the

latter

State,

there is

no constitutional

require-

ment that

there

should

be anything

more than

a

charge of crime,

and

an

indictment

which

clearly

describes

the crime

charged

is

sufficient even

though

it may

possibly

be

bad as

a pleading.

The Federal

courts

cannot,

on

habeas corpus

inquire

into

the

truth

of

an

allegation

presenting

mixed

questions

of law

and fact

in the

indictment

on

which

the demand

for petitioner s

interstate

extradition

is based;

and

qutrre

whether

it may

inquire

whether

such

indictment

was or

was not

found

in

good faith.

A Federal

court

should not,

unless

plainly

required

so to

do by

the

Con-

stitution,

assume a

duty

the exercise

of

which

might

lead

to a miscarriage

of justice

prejudicial

to the interests

of

a State.

THIS

is an

appeal

directly

to

this

court

from a

judgment of

the

Circuit

Court upon

a

writ

of

habeas

corpus

remanding

the

petitioner,

now appellant,

to

the custody

of the respondent,

now

appellee.

The

petition

for

the

writ

of habeas corpus

alleges

that

the petitioner

was

imprisoned,

detained,

confined

and

re-

strained

of his

liberty,

at the city

of St. Louis,

within

the dis-

trict aforesaid,

by Edmund

P.

Creecy,

the

chief

of

police

of

said

.city

of

St.

Louis,

in

violation

of

the

laws

and

Constitution

of

the

United

States.

There

is no dispute

about

the

facts,

which,

as

they appear

in

the

petition and

the return,

are

as

follows.

210us373

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